Allahabad High Court
Vikas Chandra Patel vs State Of U.P. And Another on 28 November, 2022
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL APPEAL No. - 3378 of 2022 Appellant :- Vikas Chandra Patel Respondent :- State of U.P. and Another Counsel for Appellant :- Ram Suphal Shukla,Lalit Kumar Gond Counsel for Respondent :- G.A.,Pankaj Kumar Singh,Vikas Chandra Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Ram Suphal Shukla, learned counsel for the appellant, Shri Om Prakash Dwivedi, learned A.G.A. for the State, Shri Pankaj Kumar Singh, learned counsel for the second respondent and perused the material on record.
The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Vikas Chandra Patel to set aside the impugned order dated 7.5.2022, whereby the Special Judge (SC/ST Act), Allahabad has rejected the bail application No. 149 of 2022 of the appellant moved by him in Case Crime No. 41 of 2022, under Sections 302, 506, 120B, IPC and Section 3(2)(v) of SC/ST Act, Police Station Utraon, District Prayagraj.
Brief facts of the case are that the first information report dated 2.3.2022 was lodged by son of the deceased against two unknown assailants (rider of Apache motorcycle), Kamlesh Kumar Patel, Ankit Kumar Patel, Prahlad Patel, Vijay Kumar Patel and Shankar Lal stating therein that on 2.3.2022 at 1.45 p.m. his father and brother Guddu were coming back from Kathara Petrol Pump with diesel. When they reached village Rehtu, near the pond, two unknown assailants in a Apache motorcycle, which had no number plate on it, came and shot his father Ashok Kumar sitting behind and after throwing the country made pistol, they ran away. His father died on the spot. One case of SC/ST act as case crime No. 302 of 2021 had already been going on against the other named co-accused persons Kamlesh Kumar Patel, Ankit Kumar Patel, Prahlad Patel and Vijay Kumar Patel and they threatened the informant and his father many times to withdraw the case. Due to this enmity the accused persons including the appellant after hatching conspiracy murdered his father.
After lodging the first information report, inquest of the body of the deceased was conducted on 2.3.2022 at 23.55 hours in the mortuary of SRN Hospital, Prayagraj. Postmortem of the deceased was conducted on 3.3.2022 at 1.15 p.m. As per postmortem report, fire arm wound 0.5 x 0.5 cm. present over back of chest 2 cm. away from mid line and 6 cm. away from medial border of left scapula and contusion sized 1 x 1 cm on anterior aspect of left chest upper region present: 7 cm oblique above from left nipple were found. Blackening and tattooing were present. As per opinion of doctor, time of death was about one day. After recording the statements of the first informant Shani Kumar, statement of eye witness Guddu and other prosecution witnesses, charge sheet had been submitted against the appellant, Shakeel-ur Rehman and Shankar Lal on 26.4.2022 and the Investigating Officer has exonerated the four named persons namely, Kamlesh Kumar Patel, Ankit Kumar Patel, Prahlad Patel, Vijay Kumar Patel. The appellant was arrested on 31.3.2022.
Learned counsel for the appellant submits as under:-
(1) The appellant is innocent and has been falsely implicated in the present case due to ulterior motive.
(2) As per allegation of the first information report, two unknown assailants shot fire to the deceased in his waist. The deceased was pillion rider of the motorcycle.
(3) As per statement of the first informant, he changed the story of firing and stated that the motorcycle was driven by his father and his brother Guddu was pillion rider. Eye witness Guddu also stated that the motorcycle was driven by his father and he was sitting behind his father.
(4) As per postmortem report, injury was found on the back of the deceased and blackening and tattooing was present, which is highly improbable when the eye witness Guddu was pillion rider.
(5) One Shakeel-ur Rehman was arrested on 31.3.2022 on the basis of the information received from police informer. Extra judicial confession was made to one villager, whose statement was recorded on 16.4.2022.
(6) Except the confessional statements of co-accused Shakeel-ur Rehman, Shankar Lal Patel, present appellant and extra judicial confession of co-accused Shakeel-ur Rehman, there is no other evidence with regard to hatching conspiracy against the appellant.
(7) The appellant was not named in case crime No. 302 of 2021, which was lodged by the first informant side against four named accused persons namely Kamlesh Kumar Patel, Ankit Kumar Patel, Prahlad Patel, Vijay Kumar Patel, who were exonerated by the Investigating Officer.
(8) Despite the clarification of name and model of Apache motorcycle, the police has seized one Pulsar motorcycle, which was not belonged to the appellant as well as other co-accused persons.
(9) The appellant is languishing in jail since 31.3.2022.
(10) The appellant has no criminal history.
It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.
Per contra, learned A.G.A. and learned counsel for the second respondent have supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. But they could not point out any material to the contrary. Learned counsel for the second respondent submits that the Investigating Officer illegally exonerated named accused persons after collecting the call detail reports of their mobiles and Investigating Officer has not collected any call detail report with regard to present appellant and other co-accused persons. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
After considering the facts of the present case it prima facie appears that;
(a) Role of hatching conspiracy has been assigned to the present appellant;
(b) Except the extra judicial confession and confessional statement of co-accused, no other evidence was collected during the course of investigation;
(c) The appellant was not named in the case crime No. 302 of 2021;
(d) The appellant is languishing in jail since 31.3.2022.
It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present criminal appeal is allowed and impugned order dated 19.5.2022 is set aside.
Let appellant/applicant, Vikas Chandra Patel be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.
The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked ;
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 28.11.2022 T. Sinha